W.P.(MD)No.7833 of 2020 and W.M.P.(MD)No.7313 of 2020 B.PUGALENDHI, J. Today, when the matter is taken up for hearing, the learned Additional Advocate General representing the 5th respondent submits that the status report has been filed on behalf of the 5th respondent, as directed by this Court on 04.08.2020.read full order

W.P.(MD)No.7833 of 2020 and W.M.P.(MD)No.7313 of 2020

B.PUGALENDHI, J.

Today, when the matter is taken up for hearing, the learned Additional Advocate General representing the 5th respondent submits that the status report has been filed on behalf of the 5th respondent, as directed by this Court on 04.08.2020.

2. The status report filed by the Joint Secretary to Government, Higher Education Department dated Nil, is placed before this Court, which reads as follows:
“3.It is submitted that this Hon’ble Court in its interim order dated 22.07.2020 has suo-moto impleaded the Secretary, Collegiate Education, Chennai as fifth respondent in this writ petition and ordered to issue a notice to the respondents and to the newly impleaded fifth respondent returnable by 04.08.2020. The newly impleaded fifth respondent shall file a status report on the steps taken by him on the complaint forwarded by the department on 02.12.2019 in proceedings No.12756/2019/EDN/CC-HQ, as required under second proviso to Section 17A of the Prevention of Corruption Act, 1988 as amended in the year 2018.
4. It is submitted that the Petition No.

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12756/2019/EDN/CC-HQ, dated 02.12.2019 received

by the Government on 06.12.2019 has been examined and considering the veracity of the allegations, Thiru K.Vivekanandan, I.A.S., Director of Technical Education has been directed to examine and submit a report to Government for necessary action.
5. It is submitted that the delay in examining the petition is neither wilful nor wanton but due to the existing COVID Pandemic situation.
6. It is submitted that as soon as a report is received from Thiru K.Vivkanandan, I.A.S., Director of Technical Education the decision shall be taken immediately and the court shall be apprised accordingly.”
But, there is no further particulars in the status report other than the submission made on behalf of the 5th respondent on 04.08.2020. Not even the date on which, the task of ascertaining the culpability on the complaint to Mr.Vivekanandhan, I.A.S., is stated in the above status report.

3. This writ petition is filed by a Member of Devanga Commercial Association and Moondru Miraasukal Uravinmurai, for a writ of mandamus, directing the respondents 1 and 2 to initiate criminal action against the erring officials of the Devanga Arts College and the
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officials in the Madurai Kamaraj University and other officials in the Directorate of Collegiate Education, based on his complaint dated 19.11.2019.

4. The writ petitioner made certain allegations as against the Administrators of the Devanga Arts College alleging that without following any basic principles, certain appointments were made in the Devanga Arts College, with the connivance of the officials of the University and the official of the Higher Education Department. In support of this contention, the writ petitioner has also relied upon certain documents, which were collected by him under the Right to Information Act.

5. By referring those documents, Mr.Veerakathiravan, learned Senior Counsel representing the learned Counsel on record for the petitioner, demonstrated before this Court that one of the candidates, namely, Kalaiselvi, who was appointed as a Lecturer in the Devanga Arts College, has submitted her application only on 01.11.2017, ie., the date on which the interview was fixed and she was also appointed on the same day. But the Devanga Arts College Administration has made entries in that application, as if the application
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was received by them on 17.10.2017. The xerox copy of the application was obtained under the Right to Information Act and also placed before this Court. In addition to that, the learned Senior Counsel has also relied upon a letter of the then Principal of Devanga Arts College dated 19.09.2019 addressed to the Directorate of Collegiate Education that he was compelled to sign in some proceedings connected with the appointments made in the College. In the said letter the Principal has also made certain averments that three persons were appointed in the college without any interview. In support of this contention, the learned Senior Counsel has also relied upon the details, which were collected under the Right to Information Act that there is no call letter from the college to any of the candidates, who applied for the post in the College and demonstrated the same through the Despatch Registers of Devanga Arts College from 24.10.2017 to 13.11.2017. It appears, there was no communication of any call letter from the College to any of the candidates for their appearance to the interview alleged to have held on 02.11.2017 and without even an application and without following the due process as contemplated under the Act
and Rules, the Administrators of Devanga Arts College,
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colluding with certain officials of the University and certain officials of the Higher Education Department, have made those appointments, illegally. The averments in the complaint and the supporting documents filed in support of the complaint made out a prima facie case that the appointments are made without any interview and without following any procedures.

6. It was represented on behalf of the respondents 1 and 2 that this complaint dated 19.11.2019 was received by the Vigilance and Anti Corruption Department on 22.11.2019 and immediately, the complaint was forwarded to the Head of the Department, namely, the Secretary, Collegiate Education on 02.12.2019 for their approval, for enquiry, as required under Section 17A of the Prevention of Corruption (Amendment) Act 2018.

7. Section 17A of the Prevention of Corruption Act is introduced in the year 2018 with an object to protect the public servants from vexatious complaints. This amendment is made in addition to the procedures contemplated under the Vigilance Manual. In fact, even in the existing system, the vigilance manual provides a system for preliminary enquiry before registering any
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complaint. In addition to that, the provision under Section 17A of the Prevention of Corruption Act has been introduced in the year 2018, with a caution that the process of approval must be completed within a stipulated period of three months and a further extended period of one month, if need be. The concerned Head of the Department must take a decision and convey the same, in writing within the stipulated time limit to the Vigilance and Anti Corruption Department.

8. In this case, admittedly, the Vigilance and Anti Corruption Department has forwarded the complaint to the Secretary, Collegiate Education on 02.12.2019 and it is also the admitted case of the Joint Secretary to the Government, Higher Education Department in his status report that they have received the complaint from the Vigilance Department in Proceedings No.12756/2019/EDN/CC- HQ, dated 02.12.2019, on 06.12.2019. The prescribed time limit of three months period as provided under the Proviso to Section 17A of the Act is over on 06.03.2020 and the extended period of one month is also over on 06.04.2020. Till the filing of this writ petition, the Secretary, Collegiate Education, has not acted upon the complaint, as per the provisions of the Act and thereby,
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he facilitated the accused to escape from the clutches of law. This act of the Secretary, Collegiate Education in not performing his duties in accordance with the Act, defeats the very object of the provisions and therefore, this Court, by order dated 22.07.2020, suo motu impleaded the Secretary, Collegiate Education, Chennai, as a party / 5th respondent to this proceedings and ordered notice.

9. On the next date of hearing, ie., on 04.08.2020, a representation was made on behalf of the 5th respondent / Secretary, Collegiate Education, that he has appointed one Vivekanadan, IAS Officer, to enquire into the allegations of the complaint received from the Vigilance and Anti Corruption Department and sought time for filing their report and therefore, the matter was adjourned for filing the status report of the 5th respondent. Pursuant to the same, the Joint Secretary has filed the above Status report today. But this status report is silent on the date on which the IAS Officer, Thiru. Vivekandan was appointed to examine the complaint. In fact, after 06.04.2020, the Secretary, Collegiate Education, himself becomes functus officio, in view of
the second proviso to Section 17A of the Act. Therefore,
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it is not known as to how the Secretary, Collegiate Education, is competent to appoint an Officer to enquire into this matter ?

10. Moreover, the documents filed in support of this writ petition itself clearly establish the manner in which the appointments were made in the said College. The document No.7 (i.e. page No.20), annexed to the typed set of papers, exposes that the application of one Kalaiselvi was made only on 01.11.2017, whereas it has been recorded as if it has been received on 17.10.2017. The Despatch Registers, which were obtained under the Right to Information Act, also expose that no call letters have been despatched to any of the candidates who have applied for the post in the said College. However, to examine these documents and to arrive at a prima facie opinion, the Secretary to Higher Education Department, took more than six months, but now, even for examining these materials, the Secretary requested for the assistance of another IAS Officer.

11. The sequence of events shows the manner in which this issue has been dealt with and this sort of delay would definitely affect the investigation. Any
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delay in the investigation can also affect the case of the complainant. It may also destroy the evidence and sometimes, it may even demoralise the witnesses.

12. The lock down announced by the Government is only from 25.03.2020 and from 1st June 2020, almost all the Government machineries are fully functioning. But in this case, the letter of the Vigilance and Anti Corruption Department requesting approval was received by the office of the 5th respondent on 06.12.2019 itself. There was no action on the said complaint till the statutory period is over and citing this COVID-19 pandemic situation cannot be a ground for the delay. What is expected under Section 17 A of the Act is to ascertain whether any prima facie ground is available for an enquiry, or inquiry, or investigation by the Vigilance and Anti Corruption Department. This protection is in addition to the protection provided under Section 197 Cr.P.C. At this stage of enquiry, the competent authority, who is expected to take a decision on his approval for investigation based on the prima facie material, is not expected to conduct a roving enquiry or trial to ascertain the guilt of the accused.

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13. If it is a reasonable delay, then it can be a negligent act. But, if this delay is made with certain deliberations, then it would amount to culpable act, which needs to be addressed and therefore, the following questions need to be answered:
“1.Whether the delay in deciding the issue of approval is deliberately made or the delay is occurred due to any negligent act?
2. If the delay is deliberately made, then whether the Vigilance and Anti Corruption Department, who is expected to enquire into the complaint, can investigate the matter further not only on the complaint, but also on the act of the officers in deliberately delaying the process of investigation, indirectly?
3. If it is made with certain deliberations, whether the officers who have deliberately helped, can be prosecuted for the offence under Section 120B IPC and / or under Section 201 IPC and / or with any other offences?”
To assist this Court in deciding these issues, Mr.Thiruvadikumar and Mr.Karunanithi, learned counsel are
appointed as Amicus Curiae.
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14. At this juncture, Mr.Lajapathy Roy, learned counsel submits that he filed an impleading petition in W.M.P.(MD)No.8368 of 2020 and requests to allow the same. He further submits that the College is a Linguistic Minority College and they are protected from the appointment procedures, as contemplated under the Tamil Nadu Private College Regulation Act and what is required is only to verify the required qualifications as prescribed under the University Grants Commission Act.

15. He further submits that the typed set of papers filed in support of this writ petition is not available with him and therefore, seeks further time to make his submission on the impleading petition.

16. The learned counsel appearing for the petitioner submits that he filed a detailed counter affidavit and raised his objection on the locus standi of the impleading petitioner in filing the impleading petition at this stage and he has also relied upon the judgments of the Hon’ble Supreme Court in the case of Narender G.Goel Vs State of Maharastra [2009 6 SCC 65] and in the case of Dhanajay Kumar Vs State of
Chattisgargh [2020 209 AIC 472].
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19. Be that as it may, since Mr.Lajapathi Roy, learned counsel seeks time to make his submission after going through the typed set of papers filed in support of this writ petition, post this matter on 25.08.2020, to take a decision on the impleading petition and to answer the issues raised above.

20. It is open to the 5th respondent to file his response, if any, in the meantime as to the queries raised above.

17.08.2020

ogy

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B.PUGALENDHI, J.

ogy

W.P.(MD)No.7833 of 2020 and W.M.P.(MD)No.7313 of 2020

17.08.2020

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